TMI Blog2017 (6) TMI 1110X X X X Extracts X X X X X X X X Extracts X X X X ..... endment of the Statute, which, admittedly, was brought about on 18.04.2006 - however, the levy could be construed without authority of law but not unconstitutional - decided in favor of Revenue. Whether the Tribunal was correct in traversing beyond the scope of appeal filed by the revenue, which only contested the application of the period of limitation under the Limitation Act as against the one provided under Section 11B of the Central Excise Act made applicable to the provisions of the Finance Act, 1994? - Held that: -, the Tribunal, in the instant case, was exercising powers, as a creature of the statute and therefore, could not have granted any relief to the Appellant/ Assessee, having regard to the nature of its jurisdiction. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ELT 193 (Guj.) 2.We may note that this is a harsh case, where the appellant ended up paying service tax, even though, it was a recipient of the service and that too, prior to the amendment, brought in, with effect from 18.04.2006. By way of amendment, Section 66 A was inserted in the Finance Act, 1994. By virtue of this provision, service tax could be collected from the recipient of service, by way of a deeming fiction, where service provider was located outside the Country. 3.In the instant case, the Appellant/Assessee, virtually, in ignorance of the provisions of law ended up paying service tax for the period 01.04.2005 to 17.04.2005. The Appellant/Assessee, it appears, realized this mistake, once a judgment was delivered by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n appeal to the Customs, Excise and Service Tax Appellate Tribunal (in short, the Tribunal). 5.3.The Tribunal vide judgment and order dated 18.10.2013 allowed the appeal. While allowing the appeal, the Tribunal made the following observations in paragraph nos.18 and 19 of its judgment: 18.I am of the view that in the case of Indian National Ship Owners' Association, the Hon. Bombay High Court and Apex Court did not consider the levy to be unconstitutional in the sense it was not a levy beyond the powers given by Constitution. This position is clear because after insertion of section 66A of the Act, now such tax is being collected without any successful challenge to the said section. Prior to 18.04.2006 when 66A was introduced th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t unconstitutional and therefore, on that short ground alone, the impugned judgment, ought to be reversed. 9.While we are in agreement with the learned counsel for the Appellant/Assessee that the observation of the Tribunal, that the levy should be construed as one without authority of law as against being unconstitutional , is erroneous, we are unable to disagree with the Tribunal, that perhaps, the remedy for claiming refund, lay, in the Appellant/ Assessee filing an action by way of a suit or writ petition. 10.This was, in our opinion, at best, a case where the tax Authorities had acted beyond their jurisdiction. The tax Authority, being creature of statute, had no jurisdiction to collect tax from the recipient of service, prior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have granted any relief to the Appellant/ Assessee, having regard to the nature of its jurisdiction. Therefore, Question No.(iii), will also have to be answered against the Assessee and in favour of the Revenue. 14.Therefore, while we are of the opinion that no relief can be granted to the Appellant/ Assessee, in view of the jurisdiction that we are presently invested with, it will be open to the Appellant/ Assessee, to take recourse to any other remedy, that may be available to it in law, to seek relief. 15.We are sure, the concerned Court will take a view in the matter, after hearing both sides and after having regard to the position in law, as regards the relief claimed by the Assessee. 16.The appeal is accordingly, dismissed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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